Gatuma v Mbai & 2 others (Environment & Land Case 21 of 2022) [2025] KEELC 3012 (KLR)
The bottom line
#The Land Court ruled that a brother registered as owner of family land held it in trust for the family, so the properties and acquisition money must be shared through succession.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure by the defence to call witnesses
The plaintiff's evidence stands uncontroverted and unchallenged
Relying on Edward Mariga v Nathaniel David Shutler and CMC Aviation v Crusair, the court held that pleadings are not evidence and averments depend on evidence for proof. Since the defendant called no witness, the plaintiff's testimony remained unchallenged and was accepted as proved on a balance of probabilities.
Whether a customary trust was established over the suit properties
Yes; the elder son was registered as trustee for the family of Gatuma Kungu, and the registered title was subject to that customary trust, defeating a claim of indefeasibility
Applying the Supreme Court's tests in Isaac M'Inanga Kiebia v Isanya Theuri M'Lintari, the court found the land was family land before registration, the plaintiff belongs to that family, and the claim is against a registered proprietor who is a family member. The family lived on and buried their dead on Dagoretti/Uthiru/281, and an earlier interlocutory observation by J.B Ojwang' J had proved true.
Entitlement to relief including the compulsory acquisition compensation
The suit properties and the acquisition compensation belong to the estate of Gatuma Kungu; distribution lies with the Succession Court and NLC is barred from releasing the money
Having found the customary trust proved, the court declared the five parcels and the compensation monies estate property. Rather than distributing the trust assets itself, the court remitted distribution to the succession court and restrained NLC from releasing the funds except on the court's orders.
Legal principles established
#- Failure by a defendant to call evidence leaves the plaintiff's evidence uncontroverted and unchallenged, though pleadings are not evidence
- A customary trust, once proved, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act, and its categories are not closed
Court orders
#- 1.An order declaring the properties Dagoretti/Ruthimitu/12, Dagoretti/Uthiru/281, Dagoretti/Mutuini/T.209, Dagoretti/Ruthimitu/T.183 and Dagoretti/Uthiru/T39 as belonging to the estate of the late Gatuma Kungu to be distributed under the Law of Succession Act
- 2.An order declaring the money generated from the compulsory acquisition of part of Dagoretti/Uthiru/281 part of the estate of Gatuma Kungu and therefore for distribution among the beneficiaries of his estate to be distributed under the Law of Succession Act
- 3.An order restraining the National Land Commission from releasing the money generated from the compulsory acquisition of part of Dagoretti/Uthiru/281 to the Defendants or any other person save with the express orders of the court
- 4.Each Party shall bear his own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (trust and title claims), suit originally filed in the High Court at Nairobi on 1st February 2005
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatuma v Mbai & 2 others (Environment & Land Case 21 of 2022) [2025] KEELC 3012 (KLR)", Case Analysis (2025). Environment & Land Case 21 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3012/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.